KONSTANTIN MOSKALEV v. RUSSIA - 59589/10 (Judgment : Remainder inadmissible - Admissibility criteria - Manifestly ill-founded Violation of Right t...) [2017] ECHR 979 (07 November 2017)

In the case of Konstantin Moskalev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Helena Jäderblom, President,
          Branko Lubarda,
          Helen Keller,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 59589/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Konstantin Vladimirovich Moskalev (“the applicant”), on 20 September 2010.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that his telephone had been tapped in breach of Article 8 of the Convention, that he had no effective remedy for that complaint and that the criminal proceedings against him had been unfair.

4. On 17 January 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and lives in the Krasnoyarsk region.

A. Surveillance measures in respect of the applicant

6. At the material time the applicant was a police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region.

7. On 31 July 2008 a certain Mr P. complained to the internal security department of the Department of the Interior of the Krasnoyarsk Region (“the internal security department”) that the applicant had extorted money from him. In particular, the applicant had asked for money in exchange for assisting him, through his contacts in the regional government, in obtaining a licence for the retail sale of alcoholic beverages. Mr P. gave the internal security department a recording he had made of his telephone conversation with the applicant earlier the same day. During that conversation the applicant had asked Mr P. to bring him money before 2 August 2008.

8. Police officers invited Mr P. to take part in an “operative experiment” (“оперативный эксперимент”), to which he consented. On the same day the head of the internal security department ordered an operative experiment in respect of the applicant with the use of audio and video recording devices.

9. On the same day, 31 July 2008, the head of the internal security department also ordered the interception of the applicant’s telephone communications without judicial authorisation by reference to section 8(3) of the of the Operational-Search Activities Act (hereafter “the OSAA”). The decision read in its entirety as follows:

“[The internal security department] has received operative information that [the applicant], a senior police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region, is extorting money in the amount of 200,000 roubles from [P.], the director of limited liability company [the company name], for assisting him in obtaining a licence for the retail sale of alcoholic beverages. At the request of the police officer the money must be delivered in the period from 31 July to 2 August 2008; the exact time and place for delivering the money is to be agreed in advance by telephone [telephone number] given by [the applicant].

[The applicant’s] actions contain elements of a criminal offence under Article 290 § 2 of the Criminal Code [bribe-taking] ...

It is necessary to perform the operational-search measure ‘interception of telephone communications’ with the aims of documenting [the applicant’s] criminal activities in a thorough and objective way, collecting evidence and uncovering other participants in criminal offences.”

10. On 1 August 2008 the acting head of the internal security department sent a letter to the deputy President of the Tsentralnyy District Court of Krasnoyarsk, informing her that on 31 July and 1 August 2008 the applicant’s telephone had been tapped in accordance with the urgent procedure provided for by section 8(3) of the OSAA. He then repeated verbatim the decision of 31 July 2008 ordering the interception of the applicant’s telephone communications.

11. On the same day, 1 August 2008, after the police had intercepted the applicant’s telephone conversation with Mr P. in which the two men had arranged to meet later that day, Mr P. was provided with a video camera, a radio transmitter and the necessary amount of money in banknotes marked with a special substance. The applicant and Mr P. met in the applicant’s car, where Mr P. left the marked money. Immediately after Mr P. had left, the applicant was arrested by the police, his car was searched and the money was seized.

B. Criminal proceedings against the applicant

1. The investigation

12. On 18 August 2008 the Investigations Committee of the Krasnoyarsk Region opened criminal proceedings against the applicant on suspicion of attempted fraud, an offence under Article 159 of the Criminal Code, in connection with the aforementioned incident. The applicant was suspected of attempted fraudulent appropriation of the funds of a private company in the amount of 200,000 Russian roubles.

13. On 28 October 2008, in reply to a request from the applicant for an expert examination of the recordings of his telephone conversations and the video recordings of his meeting with Mr P., the investigator in charge of the case held, in so far as relevant, as follows:

“... [the applicant’s] guilt for the criminal offence under Article 159 § 3 ... is completely proven by the preponderance of evidence collected.”

14. Identical statements were made by the investigator in his decisions of 7 November and 12 December 2008 and 1 April 2009 rejecting various complaints lodged by the applicant.

15. In reply to the applicant’s complaints that his telephone had been tapped unlawfully without judicial authorisation, the investigator stated, in his decisions of 7 November and 12 December 2008, that section 8(3) of the OSAA permitted the interception of telephone communications without judicial authorisation in urgent cases, provided that a court was notified within twenty-four hours of its commencement and judicial authorisation was obtained within forty-eight hours, failing which it had to be discontinued. Interception of the applicant’s telephone communications had been ordered by the head of the internal security department because at the time there had been sufficient reasons to believe that the applicant was involved in a serious criminal offence punishable under Article 290 § 2 of the Russian Criminal Code. The District Court had been notified of the interception the next day, and on the same day, that is, before the expiry of the forty-eight-hour time-limit, the interception had been discontinued; hence, there had been no reason for seeking judicial authorisation. The interception of the applicant’s telephone communications had therefore been lawful.

2. The trial

16. During the trial the applicant challenged the admissibility of all the items of evidence obtained as a result of the “operative experiment” and the interception of his telephone communications. He argued, in particular, that the police had had insufficient grounds for carrying out the surveillance measures and that they had not obtained a judicial authorisation to intercept his telephone communications.

17. On 7 December 2009 the Tsentralnyy District Court declared the audio and video recordings admissible as evidence. It held, in so far as relevant, as follows:

“... [the applicant] argues that the operative experiment and other operational-search measures were unlawful because such measures are permissible only with the aim of suppressing, preventing and investigating criminal offences of medium severity or more serious criminal offences. I suppose that at the time when the police made the decision to carry out the operative experiment and other operational-search measures against [the applicant] they had information that he had committed criminal offences classified as serious or especially serious under the law (abuse of power, bribe-taking).

In the court’s opinion, for ordering operational-search measures it is sufficient that there be some elements of a criminal offence, rather than the entire corpus delicti, permitting [the police] to make a preliminary rather than definitive classification of the offence ...

The court is not convinced by [the applicant’s] arguments that the interception of his telephone communications was unlawful because the case file does not contain a judicial decision authorising this operational-search measure. The operational-search measure against [the applicant] was carried out in conditions of urgency.

Section 8(3) of the OSAA provides that a judge must be informed within twenty-four hours of the commencement of operational-search activities in conditions of urgency and that judicial authorisation must be obtained within forty-eight hours, failing which the activities must be discontinued.

The court agrees with [the applicant] that the case file does not contain a judicial decision authorising operational-search measures. At the same time it notes that a judge was informed about the operational-search measures within twenty-four hours and the measures were discontinued within forty-eight hours of their commencement, as required by section 8(3) of the OSAA. No judicial refusal of authorisation was received. It therefore finds that no breaches of legal provisions governing operational-search measures were committed in the present case ...”

18. On 22 December 2009 the District Court convicted the applicant as charged, sentenced him to two years and two months’ imprisonment, and stripped him of his rank in the police. The court based its judgment on the statements of numerous witnesses, material evidence, expert opinions, and the audio and video recordings made on 31 July and 1 August 2008. It found that the recordings were authentic and had been obtained in accordance with the procedure prescribed by law, repeating the reasoning set out in the decision of 7 December 2009 on the admissibility of evidence.

19. In his appeal submissions the applicant complained, among other things, that the District Court had relied on unlawfully obtained evidence, in particular on recordings of his telephone conversations made without judicial authorisation. He also contested the authenticity of the recordings.

20. On 8 April 2010 the Krasnoyarsk Regional Court upheld the applicant’s conviction on appeal, adhering to the reasoning of the trial court. It found, in particular, that the audio and video recordings had been correctly declared admissible as evidence and found authentic.

II. RELEVANT DOMESTIC LAW

21. For a summary of the domestic provisions on interception of communications and use of the data thereby collected in criminal proceedings, see Zubkov and Others v. Russia (nos. 29431/05 and 2 others §§ 40-57, 7 November 2017).

22. For a summary of the domestic provisions on the judicial review of operational-search measures, see Zubkov and Others (cited above, §§ 58-76).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

23. The Court, of its own motion, raised the question under Article 13 of the Convention in conjunction with Article 8 of the Convention whether the applicant had had at his disposal an effective remedy against the alleged violations of the right to respect for his private life and correspondence. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

24. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25. The Government submitted that the applicant had had at his disposal effective domestic remedies to complain about the interception of his telephone communications. In particular, he could have lodged a judicial review complaint under Article 125 of the Code of Criminal Procedure (hereafter “the CCrP”) even before a criminal case had been opened against him. Moreover, he could, and did, raise the issue in the criminal proceedings against him by contesting the admissibility of the evidence obtained as a result of the telephone tapping. The domestic courts found that the data collected as a result of the covert surveillance was admissible as evidence because it had been obtained in accordance with the procedure prescribed by law.

26. The applicant considered that the only remedy available to him had been to raise the interception issue at the trial against him. The trial court, however, had not examined his arguments with requisite thoroughness.

27. The Court reiterates that Article 13 guarantees the availability of a remedy in respect of grievances which can be regarded as “arguable” in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations in this respect (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 96, ECHR 2000-XI).

28. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. At the same time, the remedy required by Article 13 must be “effective” in practice as well as in law, in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157 and 158, ECHR 2000-XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 96, 10 January 2012).

29. In the present case it has not been disputed between the parties that the applicant had an arguable claim under Article 8 within the meaning of the Court’s case-law and were thus entitled to a remedy satisfying the requirements of Article 13.

30. The Government invoked two avenues of judicial review available to the applicant to complain about the interception of his telephone communications: a judicial review complaint under Article 125 of the CCrP; and a complaint to the trial court that the data obtained as a result of the interception were inadmissible as evidence. The Court will examine them in turn.

31. The Court notes that the scope of the judicial review complaint under Article 125 of the CCrP was limited to reviewing whether the interception of the applicant’s telephone communications, ordered by the police, had been lawful and “well-founded” (“обоснованный”). The domestic law does not provide for any substantive criteria on the basis of which to determine whether the actions were “well founded”. In its common meaning “well founded” means no more than based on “valid” or “sound” reasons. It follows that the courts were not required by law to examine the issues of “necessity in a democratic society”, in particular whether the contested decision answered a pressing social need and was proportionate to any legitimate aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention (see paragraph 48 above).

32. The Court has already found on a number of occasions, in the context of Article 8, that a judicial review remedy which was incapable of examining whether the contested interference answered a pressing social need and was proportionate to the aims pursued did not meet the requirements of Article 13 of the Convention (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999-VI; Peck v. the United Kingdom, no. 44647/98, §§ 105-07, ECHR 2003-I; and Keegan v. the United Kingdom, no. 28867/03, §§ 40-43, ECHR 2006-X).

33. As regards the second remedy invoked by the Government, which the applicant used at the trial by challenging the admissibility of the evidence obtained by the interception of his telephone calls, the Court considers that the courts, in the criminal proceedings, were not capable of providing an effective remedy. Although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life and correspondence was not “in accordance with the law” or not “necessary in a democratic society”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001-IX; Goranova-Karaeneva, cited above, § 59; and İrfan Güzel v. Turkey, no. 35285/08, §§ 106-07, 7 February 2017; and, by contrast, Dragojević v. Croatia, no. 68955/11, §§ 35, 42, 47 and 72, 15 January 2015; Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 25 and 40-46, 31 March 2016; and Radzhab Magomedov v. Russia, no. 20933/08, §§ 20 and 77-79, 20 December 2016). The Court therefore agrees with the Government that raising the issue of covert surveillance in the criminal proceedings cannot be regarded as an effective remedy in respect of a complaint under Article 8.

34. The Government did not refer to any other remedies.

35. To sum up, the Court considers that the applicant did not have at his disposal an effective remedy which would allow the assessment of whether the surveillance measures against him had been “in accordance with the law” and “necessary in a democratic society”.

36. There has therefore been a violation of Article 13 of the Convention in conjunction with Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

37. The applicant complained that the interception of his telephone communications had violated his right to respect for his private life and correspondence. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

38. The Court notes at the outset that the parties agreed that the applicant had complied with the six-month rule. Indeed, the applicant introduced his application within six months of the final judgment in the criminal proceedings against him. It is significant that he learned about the covert surveillance during those criminal proceedings. The prosecution used the intercepted material as evidence to substantiate the case against him. The Court considers that it was reasonable, in such circumstances, for the applicant to try to bring his grievances to the attention of the domestic courts by raising the issue at the trial. The Court discerns nothing in the parties’ submissions to suggest that the applicant was aware, or should have become aware, of the futility of such a course of action. Indeed, the domestic courts could, and did, examine whether the surveillance measures had been lawful and therefore addressed, in substance, part of the applicant’s Convention complaint. In those circumstances, the Court considers that the applicant cannot be reproached for his attempt to bring his grievances to the attention of the domestic courts by means of a remedy which he mistakenly considered effective (see, for a similar reasoning, Radzhab Magomedov, cited above, §§ 77-79).

39. The Court accordingly finds that the applicant complied with the six-month rule.

40. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

41. The Government submitted that Russian law met the Convention “quality of law” requirements. In particular, the nature of offences which might give rise to an interception order was clearly set out. Interception of telephone and other communications required prior judicial authorisation, except in urgent cases. The urgent procedure included procedural safeguards, requiring that a judge be informed within twenty-four hours and that judicial authorisation be obtained within forty-eight hours; otherwise, the interception would be discontinued.

42. The Government submitted that the applicant’s telephone had been tapped in accordance with the procedure prescribed by law. The police had suspected him of bribe-taking and had ordered covert surveillance using the urgent procedure provided for by domestic law. Given that a judge had been notified about the telephone tapping within twenty-four hours and that it had been discontinued within forty-eight hours, the requirements of domestic law had been complied with. The applicant had been entitled to seek judicial review of the surveillance measures taken against him.

43. Lastly, the Government submitted that the tapping of the applicant’s telephone had been “necessary in a democratic society”. In particular, it had pursued the aims of supressing an ongoing serious criminal offence and collecting evidence against the applicant. The use of the urgent procedure had been justified.

44. The applicant submitted that his telephone had been tapped without judicial authorisation; the telephone tapping had therefore been unlawful. The domestic courts had not made any assessment of whether the use of the urgent procedure had been justified in the circumstances. Moreover, the telephone tapping had not been “necessary in a democratic society” as there had been no reasonable suspicion of the applicant’s involvement in bribe-taking.

2. The Court’s assessment

45. The Court accepts, and it is not disputed by the parties, that the tapping of the applicant’s telephone amounted to an interference with the exercise of his right to respect for his “private life” and “correspondence”, as set out in Article 8 of the Convention.

46. The Court reiterates that such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aim or aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 45, 8 March 2011).

47. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015).

48. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008). In the context of covert surveillance the assessment depends on all the circumstances of the case, such as the nature, scope and duration of the covert surveillance measures, the grounds for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232).

49. As regards the question of lawfulness, it has not been disputed by the parties that the interception of the applicant’s telephone communications had a basis in domestic law, namely section 8(3) of the OSAA, which provided for the urgent procedure.

50. Although the applicant did not complain that the quality of the domestic law had fallen short of the Convention standards, when examining whether the interference complained of was “in accordance with the law”, the Court must assess the quality of the relevant domestic law in relation to the requirements of the fundamental principle of the rule of law (see Dragojević, cited above, § 86). The Court notes in this connection that in the case of Roman Zakharov (cited above) it has already found that Russian law does not meet the “quality of law” requirement because the legal provisions governing the interception of communications do not offer adequate and effective guarantees against arbitrariness and the risk of abuse. They are therefore incapable of keeping the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, §§ 302-04). In the present case, however, the applicant’s complaint was based on a specific and undisputed instance of covert surveillance. Although the Court’s assessment of the “quality of law” necessarily entails some degree of abstraction, it cannot be of the same level of generality as in cases such as Roman Zakharov, which concern general complaints about the law permitting covert surveillance. In such cases the Court must, of necessity and by way of exception to its normal approach, carry out a completely abstract assessment of such law. In cases arising from individual applications, the Court must as a rule focus its attention not on the law as such, but on the manner in which it was applied to the applicant in the particular circumstances (see Goranova-Karaeneva, cited above, § 48).

51. In the Roman Zakharov case the Court has found that the “urgent procedure” under section 8(3) of the OSAA does not provide for sufficient safeguards to ensure that it is used sparingly and only in duly justified cases. In particular, although Russian law requires that a judge be immediately informed of each instance of urgent interception, his or her power is limited to authorising the extension of the interception measure beyond forty-eight hours. He or she has no power to assess whether the use of the urgent procedure was justified or to decide whether the material obtained during the previous forty-eight hours is to be kept or destroyed (see Roman Zakharov, cited above, § 266).

52. The Court considers that the defects of the “urgent procedure” identified in Roman Zakharov fully appeared in the present case. Indeed, although a judge was notified about the urgent interception of the applicant’s telephone communications, she did not carry out any judicial review of the police’s decision to tap the applicant’s telephone. No authority independent of the authorities carrying out the interception assessed whether the use of the urgent procedure had been justified, whether the police’s decision had been based on a reasonable suspicion that the applicant had committed a criminal offence, whether the interception had been “necessary in a democratic society” and, in particular, whether it had been proportionate to any legitimate aim pursued. The interception of the applicant’s communications by means of the “urgent procedure” was not therefore attended by appropriate safeguards against arbitrariness.

53. There has accordingly been a violation of Article 8 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

54. The applicant further complained that his conviction had been based on tape recordings which had been obtained unlawfully. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

55. The Government submitted that the applicant’s argument that the tape recordings had been inadmissible as evidence had been examined and rejected by the trial and appellate courts. The courts had established that the recordings had been obtained in accordance with the procedure prescribed by law. Moreover, they had not been the decisive evidence against the applicant; the domestic courts had relied on other evidence. The applicant’s conviction had therefore been fair.

56. The applicant maintained his claims.

57. The Court reiterates that it is not its role to determine, as a matter of principle, whether particular types of evidence - for example, evidence obtained unlawfully in terms of domestic law - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. In determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Bykov v. Russia [GC], no. 4378/02, §§ 89 and 90, 10 March 2009).

58. In the present case, the applicant was able to challenge the lawfulness and the authenticity of the evidence obtained as a result of the covert operation in the adversarial procedure before the trial court and in his grounds of appeal. His arguments were addressed by the courts and dismissed in reasoned decisions. The Court notes that the applicant made no complaints in relation to the procedure by which the courts reached their decision concerning the admissibility of the evidence.

59. The Court also attaches weight to the fact that the recordings of his telephone conversations were not the only evidence on which the conviction was based; they were corroborated by other evidence (see, for similar reasoning, Schenk v. Switzerland, 12 July 1988, §§ 48, Series A no. 140; and Bykov, cited above, §§ 96-98).

60. In these circumstances, the Court finds that the use, at the applicant’s trial, of evidence obtained through telephone tapping did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention. The proceedings in the applicant’s case, considered as a whole, including the way in which the evidence was obtained, were fair.

61. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

62. The applicant complained that his right to be presumed innocent had been violated by the statements made by the investigator in his decisions. He relied on Article 6 § 2 of the Convention, which reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

63. The Government submitted that the investigator had stated in his decisions that the applicant’s guilt had been proven by the evidence collected during the investigation. That statement had not breached the applicant’s right to be presumed innocent. The investigator had simply used a procedural formula routinely used by prosecuting authorities. That statement had to be proved by the prosecution in court in adversarial proceedings.

64. The applicant maintained his claims.

65. The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial required by Article 6 § 1 of the Convention. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty. The principle of the presumption of innocence may be infringed not only by a judge or court but also by other public authorities (see Allenet de Ribemont v. France, 10 February 1995, §§ 35 and 36, Series A no. 308). Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Daktaras v. Lithuania, no. 42095/98, § 43, ECHR 2000-X).

66. In the present case the investigator stated in several decisions taken during the investigation that “[the applicant’s] guilt ... [was] completely proven by the preponderance of evidence collected”.

67. The Court has already examined a similar statement made by a prosecutor in the case of Daktaras (cited above) and found that it did not breach the principle of the presumption of innocence. Although the Court found the prosecutor’s choice of words unfortunate, it noted that he had not made the impugned statements in a context independent of the criminal proceedings themselves, such as in a press conference, but in the course of a reasoned decision at a preliminary stage of those proceedings. Having regard to the context in which the statement had been made, the Court considered that the prosecutor had been referring not to the question whether the applicant’s guilt had been established by the evidence - which was clearly not a question to be determined by the prosecutor - but to whether the case file had disclosed sufficient evidence of the applicant’s guilt to justify proceeding to trial (see Daktaras, cited above, §§ 44-45).

68. The statement itself and the context in which it was made in the present case - in reasoned procedural decisions in the course of the investigation, rather than to the press or in another context outside the criminal proceedings - are similar to those in Daktaras. The Court therefore sees no reason to reach a different conclusion. It considers that although unfortunately worded, the contested statement did not breach the principle of the presumption of innocence.

69. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

70. Lastly, the Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

71. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

72. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. He also claimed 640,000 Russian roubles (RUB) for loss of salary while in detention.

73. The Government submitted that the applicant had not presented any documents to prove that his claims for pecuniary and non-pecuniary damage were reasonable. In their opinion, the finding of a violation would constitute sufficient just satisfaction.

74. The Court observes that the decision to prefer criminal charges against the applicant and to detain him was not the subject of its review in the present case. There is no causal link between the violations found and the alleged loss of earnings. The Court therefore rejects the applicant’s claim for pecuniary damage. On the other hand, it awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

75. The applicant claimed RUB 60,000 (about EUR 1,540) for his legal representation before the domestic courts, and presented a legal fee agreement. He also claimed RUB 23,500 (about EUR 600) without submitting any supporting documents, claiming that the relevant legal fee agreement had been lost. He claimed a further RUB 1,670 (about EUR 43) for postal expenses, and submitted the relevant invoices.

76. The Government submitted that the applicant had not presented any documents confirming that the legal fees had actually been paid.

77. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

C. Default interest

78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the alleged breach of the applicant’s right to respect for his private life and correspondence and the lack of an effective remedy in that respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 8 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KONSTANTIN MOSKALEV v. RUSSIA - 59589/10 (Judgment : Remainder inadmissible - Admissibility criteria - Manifestly ill-founded Violation of Right t...) [2017] ECHR 979 (07 November 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/979.html Cite as: [2017] ECHR 979, ECLI:CE:ECHR:2017:1107JUD005958910, CE:ECHR:2017:1107JUD005958910